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F 8.81.19a
Poison Special Circumstance:
Improper To Direct Verdict On Element
*Modify CJ 8.81.19 to DELETE the following:
[__________ is a poison.]
Points and Authorities
Whenever an instruction removes a factual question from the jury’s consideration by stating that ” _____ is a ____” there is a danger that the instruction will improperly usurp the jury’s responsibility to decide the removed issue. (See e.g., People v. Figueroa (86) 41 C3d 714, 725 [224 CR 719], People v. Wilkins (93) 14 CA4th 761, 776-780 [17 CR2d 743], People v. Godinez (92) 2 CA4th 492, 502 [3 CR2d 325], People v. Beltran (89) 210 CA3d 1295, 1303 [258 CR 884]; see also People v. Lara (94) 30 CA4th 658, 668 [35 CR2d 886] [instruction was improper but did not entirely remove the element]; People v. Jarrell (87) 196 CA3d 604, 607 [242 CR 219] [same]; but see People v. Brown (88) 46 C3d 432, 444 fn 6 [250 CR 604] [Figueroa distinguished].)
“Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation].” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) Directing the jury to find an element against the defendant violates the state (Art. I § 15) and federal (6th and 14th Amendments) constitutional rights to due process and trial by jury. (Figueroa, 41 C3d at 725; see also, U.S. v. Gaudin(95) 515 US 506 [132 LEd2d 444; 115 SCt 2310] Carella v. California (89) 491 US 263, 265-66 [105 LEd2d 218; 109 SCt 2419]; U.S. v. Medjuck (9th Cir 1995) 48 F3d 1107, 1110.) “[I]f a court direct[s] a verdict for the prosecution in a criminal trial by jury … the state cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” (Rose v. Clark (86) 478 US 570, 578 [92 LEd2d 460; 106 SCt 3101]; see also Figueroa, 41 C3d at 723-34.)
This danger is present even when the instruction falls short of directing a verdict. “The prohibition against directed verdicts ‘includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.’ (United States v. Hayward (DC Cir. 1969) 420 F2d 142, 144.) As one panel of the Fifth Circuit has stated, ‘[N]o fact, not even an undisputed fact, may be determined by the judge.’ (Roe v. U.S. (5th Cir. 1961) 287 F2d 435, 440, cert. den. (61) US 824 [7 LEd2d 29; 82 SCt 43]; accord U.S. v. Musgrave (5th Cir. 1971) 444 F2d 755, 762.)” (Figueroa, 42 C3d at 724.)
In the context of an enhancement, this error has been characterized as one of state law and not of federal constitutional dimension. (People v. Wims (95) 10 C4th 293, 304-09 [41 CR2d 241].) However, Apprendi v. New Jersey(2000) 530 US 466 [147 LEd2d 435; 120 SCt 2348, 2362], Jones v. U.S. (99) 526 US 227 [143 LEd2d 311; 119 SCt 1215] and Blakely v. Washington (2004) 542 US 296 [159 LEd2d 403; 124 SCt 2531] make it clear that the federal constitutional rights to trial by jury and due process (6th and 14th Amendments) apply to any non-recidivist sentencing enhancement which increases the defendant’s sentencing exposure. (See FORECITE EA V(L).)
Moreover, when an element of a special circumstance (e.g., poison or destructive device) is also used to establish an element of first degree murder per PC 189 (see CJ 8.23), the error effectively directs a verdict on an element of the underlying charge and, thus, violates the federal constitution. (But see Stanton v. Benzler (9th Cir. 1998) 146 F3d 726 [CJ 8.81.19 is not constitutionally invalid for allowing trial court to instruct as a matter of law whether a substance is a poison].)
The federal constitutional rights to due process and fair trial by jury fully apply to any essential finding which increases the range of applicable punishments by making the defendant death eligible. (See DP II [Checklist Of Selected 6th/8th/14th Amendment Principles] # 19.) [Additional briefing and an unpublished opinion finding it error to instruct that heroin is a poison is available to FORECITE subscribers, ask for Brief Bank # B-724 and Opinion Bank # O-248.]
F 8.81.19b
Poison Special Circumstance: Intent To Kill (PC 190.2(a)(19))
*Add to CJ 8.81.19:
To find that the murder by administration of poison special circumstance is true, the prosecution must have proven beyond a reasonable doubt that the defendant administered poison to the victim with the intent to kill.
Points and Authorities
See People v. Catlin (2001) 26 C4th 81 [109 CR2d 31].